1937: Franklin Delano Roosevelt Stacking of the Supreme Court

SOURCE: The Great IRS Hoax book, Section 6.2.4.

President Franklin D. Roosevelt, during his long 12-year tenure in office in the 1930’s, tried to ram his socialist programs down our throat. To name a few of these programs he tried to institute:

1. Social Security (1935).

2. Outlawing of the holding of gold by private individuals and forcing citizens to use paper currency.

3. Direct income taxes on individuals. These taxes were struck down by the following Supreme Courtrulings:

3.1. 1920: Evens v. Gore, 253 U.S. 245 (1920)(struck down direct income taxes on federal judges).

3.2. 1922: Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). The Supreme Courtruled that a federal income tax on child labor was unconstitutional.

3.3. 1924: Cook v. Tait, 265 U.S. 47 (1924)(ruled that direct taxes on individuals cannot be sustained based on income).

3.4. 1938: Hassett v. Welch, 303 U.S. 303 (1938). The Supreme Courtruled that all doubts about the construction of income tax laws should be resolved in favor of taxpayers, not the government.

4. Social security numbers.

5. Railroad retirement (struck down in 1935 in the Supreme CourtCase of Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330 (1935)).

Because of these rulings against his socialist programs, FDRwas feeling thwarted by the Supreme Court. Therefore, on March 9, 1937, he announced his intention via radio to the entire nation that he was going to “stack” the Supreme Court (see http://www.hpol.org/fdr/chat/). This was called “the court packing plan”. The Supreme court originally had 6 justices, and he doubled its size by adding several of his own “cronies” who would uphold and defend his socialist programs, including Social Security and the Victory Tax. He also proposed to replace all the justices over 70, which included 5 of the 6 justices then in office. Here are some of FDR’s own words, given during a radio address on March 9, 1937:

“But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and by state legislatures in complete disregard of this original limitation which I have just read.


The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress - a super-legislature, as one of the justices has called it - reading into the Constitution words and implications which are not there, and which were never intended to be there.

We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Courtto the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.


What is my proposal? It is simply this: whenever a judge or justice of any federal court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the president then in office, with the approval, as required by the Constitution, of the Senate of the United States.

That plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all federal justice, from the bottom to the top, speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.


Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking to "pack" the Supreme Courtand that a baneful precedent will be established.

What do they mean by the words "packing the Supreme Court?" Let me answer this question with a bluntness that will end all honest misunderstanding of my purposes.

If by that phrase "packing the Court" it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: that no president fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.


But if by that phrase the charge is made that I would appoint and the Senate would confirm justices worthy to sit beside present members of the Court, who understand modern conditions, that I will appoint justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint justices who will act as justices and not as legislators - if the appointment of such justices can be called "packing the Courts," then I say that I and with me the vast majority of the American people favor doing just that thing - now.

Is it a dangerous precedent for the Congress to change the number of the justices? The Congress has always had, and will have, that power. The number of justices has been changed several times before, in the administrations of John Adams and Thomas Jefferson- both of them signers of the Declaration of Independence- in the administrations of Andrew Jackson, Abraham Lincoln, and Ulysses S. Grant.


Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.

Could it be any clearer, after reading this and looking at the history of the Supreme Courtrulings at that time following his “packing plan” that he was trying to stack the deck and ramrod his socialist programs down our throats?

Below is what the U.S. Senate Report 711 said about the packing plan, which they had a very dim view of:

Senate Report 711, June 7, 1937

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Last revision: August 14, 2009 08:07 AM
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